A Denver police officer fired for using unauthorized ammo and a rifle without proper training during a shoot out was well-qualified with the weapon and should get his job back, his lawyer told a Civil Service Commission hearing panel Tuesday.

Former Safety Manager Charles Garcia fired Robert Fitzgibbons, 41, for an incident in which bullet fragments from the AR-15 he used injured Diamond Demmer, 29, a bystander during the incident July 2, 2010.

Fitzgibbons, a 13-year department veteran, has appealed the termination.

His hearing is expected to last through Thursday.

Fitzgibbons and Cpl. John Schledwitz were part of a crowd-control detail outside Club Vinyl on Broadway early that Friday. An off-duty sheriff’s deputy pointed to a man running to his car and told them he was getting a gun.

The officers saw the man, Sorl Shead, rummaging under the car seat and ordered him to leave the area, according to testimony Tuesday. Shead pulled out a gun and fired at the two officers.

Schledwitz fired a paintball gun and then switched to his service revolver. Fitzgibbons, who was armed with an AR-15 he owned, fired that weapon.

Fitzgibbons made a mistake when he loaded a magazine containing the unauthorized rounds into his weapon, said his lawyer, Doug Jewell. The magazine was among a jumble of others in the trunk of his car, only one of which held unauthorized ammo.

There are no department disciplinary rules under which Fitzgibbons’ offenses call for firing, Jewell added.

“There is no necessity to go to presumptive termination,” Jewell said. “He made a mistake, and he knows it.”

But Assistant City Attorney Joseph Rivera told the three-member panel hearing the appeal that Fitzgibbons’ superiors refused to train him to use the AR-15, although he asked five times, because they didn’t trust his judgment.

“On his own accord and according to his own rules, he decided the AR-15 was the best weapon for the job,” Rivera said.

Fitzgibbons compounded his offense by loading the weapon with military-type magnesium-tipped tracer rounds that illuminate the path the bullet takes, in a hardened metal jacket, Rivera said. The rounds are fire hazards and have more penetrating power and are more likely to fragment than department-authorized hollow-point bullets, he added.

Fragments from two rounds struck Demmer in the leg and torso. Two more went through a concrete wall and into an office on the third floor of a building. “His lack of training contributed to her (Demmer) being hit,” Rivera said.

Jewell said the U.S. Army trained Fitzgibbons, an Iraq war veteran, as a sniper, and that he routinely used an M-16, a military weapon similar to the AR-15.

Fitzgibbons’ weapon also contained department-issued hollow-point bullets, and it isn’t certain that the fragments that hit Demmer came from the unauthorized rounds, Jewell said.

A general assignment reporter for The Denver Post, Tom McGhee has covered business, police, courts, higher education and breaking news. He came to The Post from Albuquerque, N.M., where he worked for a year and a half covering utilities. He began his journalism career in New York City, worked for a pair of community weeklies that covered the west side of Manhattan from 14th Street to 125th Street.

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